Summary: We cannot investigate Ms X’s complaint about the Council abandoning plans to seek a court order to ensure the return of her child, and instead leaving the child with a parent who harmed them. This is because court action was commenced and a s.37 report ordered, which means the matter of who may safely care for the child has been subject to court action. That removes our legal power to investigate this matter.

The complaint

1. Ms X said the Council had failed to safeguard her child by abandoning its plans to seek a court order to remove the child from their father. She said her child has since come to harm.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended).
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The complaint correspondence refers to court action being started that led to a request for a s.37 report due in early 2024. There is no doubt the issue likely to have been before the court, as at the heart of this complaint, is the fitness of parents to care for a child. Only a court could decide that issue in the event of a dispute. The onset of court action, even if discontinued or abandoned, removes our legal power to consider the Council’s decision that the child’s father should retain care. That remains the case even if the child has since come to harm .

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Final decision

8. We cannot investigate Ms X’s complaint because the matters complained of are directly connected to matters of the fitness to parent, which have been subject to court action.
9. Ms X also has a right to return to court it would be reasonable to use as only a court could deliver the outcome she is seeking.

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Investigator's decision on behalf of the Ombudsman